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district attorney could have a search warrant served against a postmaster in a city because he knew the letter was passing between & gambler and the syndicate. I don't know whether this could be seized.
Senator CARROLL. I am thinking in terms of a fugitive, for example Suppose the police wish to put a watch on his mail, or mail coming to his mother or his sister or somebody in close contact.
Mr. Westin. Mail covers, as I understand it, are done often and they are legal. I have seen reports in investigations that a mail cover was placed on so-and-so's mail and the authorities will list all the return addresses and the postmarks.
Senator CARROLL. Does it authorize anyone to open that envelop?
Mr. Westin. I think there is a very important distinction between the mail cover and the opening. I know the mail cover can be done.
The question you raised about whether you could lawfully seize a piece of mail in transit and open it on court order, I don't know. I have a vague feeling that you can't.
Senator CARROLL. Wasn't the purport of the Denver Post editorial that the mail could not be opened?' I am not aware of any law or regulation that will permit it to be opened; perhaps there may be
Through history the mail has enjoyed a highly privileged position. The telegraph by its very nature has not. A telegram is transmitted and read by scores of people before it is delivered. A letter is in an entirely different category and so is a personal telephone call. If I call you personally, I have the right, operating through a public utility, to talk to you personally.
If I telephone a radio station in Colorado to give it a report on a newsticker, I think I am right when I say there will be a beep coming along to let me know I am being recorded.
Mr. WESTIN. Yes, sir.
Senator CARROLL. When I hear that beep it takes away the personal privacy and I know therefore that I am speaking for the record.
If we legalize this thing we are permitting people to cut in on s great personal privilege.
We have the question of the rights of society, how far should we go.
Coming back to the mail, I am not sure I am right on this but when they put on a mail cover and it is an important enough case, say a kidnaping case, I suspect that mail might be opened. I am not sure I am right, but I suspect that. Here we have been operating for a hundred years and more on this system which is imperfect, just like an arrest without probable cause, an arrest for investigation, done by the thousands every day over this country.
That leads me now to a question on the editorial. The real question is in the last sentence. The telephone conversation deserves privacy equal to that which is accorded the U.S. mails.
But here we are asked to open telephone conversations. This is, in a sense, what we are being asked to do except perhaps to say to the State, "handle your own problems." Each State will handle its own problems. It is true the problems in New York are far different from Colorado.
Now in New York you have the melting pot where people come from many other countries; and New York has great problems. The thing that impresses me about the New York situation is they have tapped for 20 years and have able lawyers, and I think one of the outstanding police departments in the Nation. Perhaps I could justify myself
by saying let the States handle it. Mr. WESTEN. My own feeling would be there is nothing in the bills that have been proposed that requires each State to set up a wiretapping system.
I specifically made a comment under "B" of my third point that the measure should permit States to overhear conversations if this is done under court order or ban all wiretapping and eavesdropping if the States desires it.
In the instance you raise where Colorado is not faced with the same law enforcement problems and the degree that you have them in New York, then Colorado would be perfectly able to pass the IllinoisPennsylvania type of statute which wholly bans it and does not allow law enforcement officials to do it.
I wouldn't assume that the opening up of discretionary State power would become a requirement.
Senator CARROLL. They have a statute outlawing wiretapping and have had for many years. I don't think they pay any attention to it. I can't recall any prosecutions, but it seems to me the system, and the way they are handling it, seems to be getting along all right.
In our own State, if we were to wipe out that statute and put in another statute permitting interception and "bugging," I think our people would rise up in arms.
On the other hand, if we don't want tapping in Colorado, we shouldn't deny it to another area where their own people think they ought to have it.
My point was really about this editorial and to say there is some merit to it. The Denver Post editorial is taking sharp issue with Senator Dodd's bill. I think Mr. Silver yesterday took sharp issue with Senator Dodd's bill.
I will not press that any more because you have been here a long time and I know you are tired.
Mr. CREECH. Professor Westin, Mr. Waters has some questions.
Mr. WATERS. Professor, could you tell us just briefly if you have any comments about that part of the Montgomery, Ala., newspaper containing an editorial which touched on the fact that, unlike the search and seizure operation, the wiretapper is in a position of one similar to a policeman being placed in a closet for an indefinite period and deciding what he heard was useful or not.
Mr. WESTIN. I think one of the most difficult problems of anybody who supports limited legalized wiretapping has to do with the scope of the search and the inability to pinpoint the search that you have in the wiretapping and eavesdropping situation and the classic search for concrete physical evidence that you have so clearly stated in the classic procedure of the fourth amendment and the law that developed around it.
My own feeling about this is that, if you assume for the moment that the police in grave crimes involving national security and the safety of human life should be allowed to search, the problem is to find a way to search on the telephone if it is the instrument of carrying out the crime which would provide some means of limitation. After you sit and think about it, at least as long as I sit and think about it, I have never been able to do anything more than to say that the wiretap warrant is not as limited as the search warrant. It covers a longer period of time and also covers everybody that calls on that line, even though they may not be in any way connected with any criminal activity and so it puts a range of personal intrusion in the hands of police officers which troubles me very much.
Yet, having said that, I still come back to what seems to be the typical questions in the grave kind of criminal situation, and I am talking about wiretapping and eavesdropping in a small percentage of instances compared to the way some other advocates of limited wiretapping would have it, in those cases I think that it is the nature of the telephone that requires the enlargement of the search. Not that in some way we are perverting our law of privacy; rather that it is the difference in the method of communication. It requires something of a different level of search. I again feel torn into a clash of values myself.
Mr. WATERS. I take it then, Professor, that you are concerned with the fact the subject is unaware that his conversation has been intercepted.
Mr. WESTIN. The way you phrase that strikes me as a way in which those who advocate wiretapping sometimes do not phrase it; that is, if you have a wiretap warrant stipulating that the telephone is the instrument by which a crime is being committed this, it seems to me, is distinguishable from the situation in which, as unfortunately many police departments have done in the past, the officers simply know that somebody is a criminal and therefore tap his telephone because he will be saying things or talking about his activities and they hope to get leads.
My own feeling is that the judge who passes on the wiretap warrant, should be given a clearcut understanding by Congress in its draftsmanship that Congress wanted the judge not to give a warrant for coverage of a known criminal or coverage of somebody that was “engaged in dangerous activity", but only when the telephone is being used for the purpose of carrying on the offense for which wiretapping is being used as the investigative technique, I think this could provide some line of distinction.
I am familiar with the argument that many law enforcement officials would make at this point, that if you know that somebody is engaged in the middle of a crime, even though the telephone is not the instrument of carrying it out, the telephone will be the way that you get leads—to know that the meeting is being set up on pier 66 or that the trucks are going to roll tonight. They would argue that you shouldn't narrow it simply to the instrument concept.
Yet, my concern about the broadness of wiretap instructions is such that I would like to see it limited to the situation where the telephone is an instrument of the crime.
Mr. WATERS. Thank you, Professor Westin.
Now could you tell us, I am not aware if the Illinois statute has ever been tested, but it purports to prohibit tapping or eavesdropping by any individual, any law enforcement officer, and even law enforcement officers of the United States in pursuance of his official duties. Do you have any comments on that portion of the State's statute?
Mr. Westin. Yes, at the time that was enacted, my first reaction was to wonder if this would hold up in a constitutional test.
If a Federal official who was acting in an investigation of a crime against the Nation, a Federal offense, I doubt whether a State could, within its own territorial jurisdiction, prevent him from using a means not illegal under Federal law. If we assume that the Federal official could do this as a matter of Federal law, I would have doubts whether the State of Pennsylvania or Illinois would be able to uphold a prosecution of the Federal official.
I would think the paramount obligation of the Federal official to pursue in all parts of the country by legal, Federal means would prevail.
Senator CARROLL. Let's assume we have a Federal statute permitting the intercepting, and divulgence of any crime involving interstate commerce." We would have preempted that field, wouldn't we and the State couldn't interfere with it?
Mr. WESTIN. As I understand, preemption itself is a case of congressional intent.
Senator CARROLL. But normally, supposing Congress passes the statute dealing with interstate commerce and that the States said therefore if we had a man involved in a crime which in turn involved interstate commerce, no State statute would be applicable.
In the case of wiretapping, we have a Federal statute. We have a U.S. court decision, a decision of the U.S. Supreme Court and in a sense it is now argued that we have preempted this field and the States are asking us to modify the law to let them do as they did before. Isn't this basically and simply what this is about?
Mr. WESTIN. Yes, I would agree with that. I would think though, in answer to the question, what Congress has taken away Congress can put back if it chooses to allow the States to do this.
Senator CARROLL. This is the issue, is it not?
Mr. WESTIN. It is the issue as the Court has made it the issue. That would be my view. Having looked at every page and at every hearing and at the public comment on the Radio Act of 1927 and the Communications Act of 1934, I personally am persuaded that Congress never had the intention of dealing with law enforcement wiretapping in that statute.
Therefore, I see this very much as a judicial interpretation of the words that will support the interpretation, certainly.
Senator CARROLL. Congress never thought of it. The Supreme Court says you must have thought of that because this is what you said. This happened in the Gas Act, too.
Now this has been a very helpful discussion. We are developing these ideas as we go along and it is very important to discuss them with you. I am hopeful that the other Senators will read this record and I am sure there will be a hot debate on this issue.
Mr. WATERS. Just touching on the one point, I indicated in Illinois it would appear the answer is that if a Federal officer intercepted it would be under the jurisdiction of the Federal court, would it not?
Mr. WESTIN. I would think so.
Senator CARROLL. Mr. Chairman, might I say I feel that the American people, on the overall principle, will not put their stamp of approval on unlimited wiretapping and intervention and bugging. There may be certain categories of crime where it is necessary. If I were a district attorney in Brooklyn I would say I need tapping for kickback and espionage cases. Certainly we don't want to block the FBI and the other people from tapping. We know that wiretapping is a widespread practice.
I am talking about the law enforcement officials. I don't know of any case where any district attorney has prosecuted police officers who put in a wiretap because it is illegal in itself. Now this is a curious thing for me to say, but why not let it operate as it is! Why put a stamp of approval on certain categories?
It seems to me that the police are doing it anyway. What I really object to, I suspect, is being asked to put the stamp of approval on the introduction of this type of evidence against the defendant.
Mr. WESTIN. Isn't the problem that you have raised this: If there was no law at all on the books at the present time at the Federal or State levels, then you could say let's not pass any law that will permit law enforcement officials to do this. Then they will tap surreptitiously, but they won't introduce wiretaps in evidence, but just use it for leads.
I have heard this position suggested a number of times and if you had a situation of a clean slate, I could see a certain amount of persuasiveness in it. But since you have laws today purporting to forbid it and Supreme Court decisions based upon that law, we leave the poor Justices sitting out on the limb constantly edging their way to the end.
Senator CARROLL. Who is that?
Mr. WESTIN. The Justices of the U.S. Supreme Court who have interpreted section 605.
Senator CARROLL. We don't worry about them in this committee. If they are out there on a limb they got there by themselves.
Mr. WESTIN. I think that the general problem here is captured by a famous quotation which comes from the Olmstead case.
Senator CARROLL. Actually, the Olmstead argument doesn't impress me at all. I think you have said that in certain categories of serious crimes we should permit interception, divulgence, and bugging. Now you can rest assured the law enforcing agencies of this country are not going to stop at those particular crimes. With a court order that is legal in the great field of their activity, other areas would be opened up.
Mr. Westin. I am a little more optimistic. I am assuming if you had men who wanted to police this, that is the legislatures, they could do so. I believe that if public opinion supported this, as in Pennsylvania and Illinois, and if the respect-for-law argument at the heart here is to be maintained, then you would work hard, once you permitted it, to make sure that if police did it in other instances, they would do it with the risk that if it ever was heard of they would pay the price for indictment and conviction.
Senator CARROLL. If you were district attorney of Brooklyn and you believed there was something going on and the chief activity centered on organized gambling, it wouldn't be of much help to have these statutes for more serious crimes. Now New York has had its own practice for 20 years.